DEPARTMENT OF DEFENSE
               DEFENSE OFFICE OF HEARINGS AND APPEALS
          
            
In the matter of: )
)
)       ISCR Case No. 15-06263
)
)
Applicant for Security Clearance )
Appearances
For Government: Andrew H. Henderson, Esquire, Department Counsel
For Applicant: Sean M. Bigley, Esquire
December 14, 2016
______________
Decision
______________
CEFOLA, Richard A., Administrative Judge:
Applicant submitted his Electronic Questionnaires for Investigations Processing
(e-QIP) on January 20, 2015.  On April 15, 2016, the Department of Defense (DOD)
issued a Statement of Reasons (SOR) detailing the security concerns under Guideline
B for Applicant.  The action was taken under Executive Order 10865, Safeguarding
Classified Information Within Industry (February 20, 1960), as amended; Department of
Defense Directive 5220.6, Defense Industrial Personnel Security Clearance Review
Program (January 2, 1992), as amended (Directive); and the adjudicative guidelines
(AG), effective within the Department of Defense after September 1, 2006.
Applicant answered the SOR in writing on May 9, 2016, and requested an
Administrative Determination by an administrative judge.  Department Counsel issued a
File of Relevant Material (FORM) on June 9, 2016.  Applicant responded to the FORM
(Response) on July 12, 2016.  Department Counsel had no objection, and the
documents are entered into evidence.  The case was assigned to me on December 1,
2016.  Based upon a review of the pleadings and exhibits, eligibility for access to
classified information is denied.
Findings of Fact
In his Answer to the SOR, Applicant admitted all the factual allegations of the
SOR, with explanations.
Applicant is a 46 year-old “President of [a] “US Corporation.”  (Item 2 at pages 5
and 15.)  He became a naturalized U.S. citizen in August of 2006.  (Item 2 at page 7.)
Guideline B - Foreign Influence
1.a.  Applicant’s spouse is a citizen of South Korea, residing in the United States. 
(Response at Exhibit I.)  She “is a housewife and stay at home mother.”  (Item 3 at page
5.)
1.b.  Applicant’s parents are citizens and residents of South Korea.  (Item 3 at
pages 21~24.)  They are both retired; but before his retirement, his father was a
“Constitutional Court” Judge.  (Item 2 at page 22.)  Applicant avers that his father retired
in “2005.”  (Response at page 5.)  He further avers that his mother was a homemaker. 
(Id.)
Applicant’s two sisters are citizens and residents of South Korea.  (Item 2 at
pages 27~29.)  He avers that they are “homemakers.”  (Response at page 5.)
Applicant’s brother is a citizen and resident of South Korea.  (Item 2 at pages
29~31.)  He avers that his “brother works in consulting at a private bank.”  (Response at
page 5.)
Applicant speaks to his parents and siblings “about four (4) times per year.”  (Id.)
1.c.  Applicant admits he has a South Korean bank account with about $4,000 in
it.  He is in the process closing this account, as evidenced by a letter to the bank. 
(Response at Exhibit J.)
1.d.  Applicant admits he owns a home in South Korea valued at about
$1,100,000.  He avers that he plans “to sell the property as soon as reasonably feasible
and purchase a home in the United States.”  (Response at page 5.)  Despite the
Government’s concern noted in the SOR issued more than six months ago; and
reiterated in the Government’s FORM, Applicant has yet to address this serious concern
of the Government.
Both Department Counsel and Applicant Counsel ask me to take administrative
notice of the facts regarding South Korea.  South Korea is one of the United States’
most important strategic and economic partners in Asia.  In 2012, both countries
entered into a free trade agreement, which is expected to add between $10~$12 billion
dollars to our Gross Domestic Product.  The United States and South Korea have had a
Mutual Defense Treaty since 1953, and we have a strong military presence there.  That
being said, South Korea has a history of collecting protected U.S. information.
2
Policies
When evaluating an applicant’s suitability for a security clearance, the
administrative judge must consider the adjudicative guidelines (AG).  In addition to brief
introductory explanations for each guideline, the adjudicative guidelines list potentially
disqualifying conditions and mitigating conditions, which are useful in evaluating an
applicant’s eligibility for access to classified information.
These guidelines are not inflexible rules of law.  Instead, recognizing the
complexities of human behavior, these guidelines are applied in conjunction with the
factors listed in the adjudicative process.  The administrative judge’s over-arching
adjudicative goal is a fair, impartial and commonsense decision.  According to AG ¶
2(c), the entire process is a conscientious scrutiny of a number of variables known as
the “whole-person concept.”  The administrative judge must consider all available,
reliable information about the person, past and present, favorable and unfavorable, in
making a decision.
The protection of the national security is the paramount consideration.  AG ¶ 2(b)
requires that “[a]ny doubt concerning personnel being considered for access to
classified information will be resolved in favor of national security.”  In reaching this
decision, I have drawn only those conclusions that are reasonable, logical and based on
the evidence contained in the record.  Likewise, I have avoided drawing inferences
grounded on mere speculation or conjecture.
Under Directive ¶ E3.1.14, the Government must present evidence to establish
controverted facts alleged in the SOR.  Under Directive ¶ E3.1.15, the applicant is
responsible for presenting “witnesses and other evidence to rebut, explain, extenuate,
or mitigate facts admitted by the applicant or proven by Department Counsel. . . .”  The
applicant has the ultimate burden of persuasion as to obtaining a favorable clearance
decision.
A person who seeks access to classified information enters into a fiduciary
relationship with the Government predicated upon trust and confidence.  This
relationship transcends normal duty hours and endures throughout off-duty hours.  The
Government reposes a high degree of trust and confidence in individuals to whom it
grants access to classified information.  Decisions include, by necessity, consideration
of the possible risk the Applicant may deliberately or inadvertently fail to protect or
safeguard classified information.  Such decisions entail a certain degree of legally
permissible extrapolation as to potential, rather than actual, risk of compromise of
classified information.
Section 7 of Executive Order 10865 provides that adverse decisions shall be “in
terms of the national interest and shall in no sense be a determination as to the loyalty
of the applicant concerned.”  See also EO 12968, Section 3.1(b) (listing multiple
prerequisites for access to classified or sensitive information).
3
Analysis
Guideline B - Foreign Influence
Paragraph 6 of the adjudicative guidelines sets out the security concern relating
to Foreign Influence:
Foreign contacts and interests may be a security concern if the individual
has divided loyalties or foreign interests, may be manipulated or induced
to help a foreign person, group, organization, or government in a way that
is not in U.S. interests, or is vulnerable to pressure or coercion by a
foreign interest.
Here, Paragraphs 7(a) and 7(e) are applicable: 7(a) “contacts with a foreign
family member . . . who is a citizen of or resident in a foreign country if that contact
creates a heightened risk of foreign exploitation, inducement, manipulation, pressure, or
coercion”; and 7(e) “substantial . . . property interest in a foreign country . . . .”  The
Applicant’s parents and siblings are citizens and residents of South Korea.  Paragraph
7(a) is countered by the first mitigating condition, as 8(a) “the nature of the relationships
with foreign persons, . . . are such that it is unlikely the individual will be placed in a
position of having to choose between the interests of a foreign individual . . . and the
interests of the U.S.”  His parents and brother now have no connection with the Korean
government; his father has been retired for a decade, and he would not jeopardize
national security vis-a-vis these relatives.
That, however, can not be said vis-a-vis his financial interest in South Korea,
over a million dollars.  He has had more than six months to deal with this obvious
concern of the Government, but has chosen not to do so.  If and when Applicant
eliminates this concern, he may well be eligible for a security clearance, but not now.
Whole-Person Concept
Under the whole-person concept, the administrative judge must evaluate an
applicant’s eligibility for a security clearance by considering the totality of the applicant’s
conduct and all the circumstances.  Under AG ¶ 2(c), the ultimate determination of
whether to grant eligibility for a security clearance must be an overall commonsense
judgment based upon careful consideration of the guidelines and the whole-person
concept.
The administrative judge should also consider the nine adjudicative process
factors listed at AG ¶ 2(a):
(1) the nature, extent, and seriousness of the conduct; (2) the
circumstances surrounding the conduct, to include knowledgeable
participation; (3) the frequency and recency of the conduct; (4) the
individual’s age and maturity at the time of the conduct; (5) the extent to
which participation is voluntary; (6) the presence or absence of
rehabilitation and other permanent behavioral changes; (7) the motivation
4
for the conduct; (8) the potential for pressure, coercion, exploitation, or
duress; and (9) the likelihood of continuation or recurrence.
I have considered all of the evidence, including the potentially disqualifying and
mitigating conditions surrounding this case.  Applicant is highly regarded by those who
know him.  (Response at Exhibit E.)  Overall, the record evidence leaves me with
questions or doubts as to Applicant’s eligibility and suitability for a security clearance. 
For all these reasons, I conclude Applicant has not mitigated the security concerns
arising from his Foreign Influence.
Formal Findings
Formal findings for or against Applicant on the allegations set forth in the SOR,
as required by section E3.1.25 of Enclosure 3 of the Directive, are:
Paragraph 1, Guideline B: AGAINSTAPPLICANT
Subparagraphs 1.a.~1.c. For Applicant
Subparagraph 1.d. Against Applicant
Conclusion
In light of all of the circumstances presented by the record in this case, it is not
clearly consistent with the national interest to grant Applicant eligibility for a security
clearance.  Eligibility for access to classified information is denied.
Richard A. Cefola
Administrative Judge
5